Ammir Umar sues Officer Craig Storlie based on 42 U.S.C. § 1983 for deprivation of his Fourth and Fourteenth Amendment rights, as well as related state law claims for false imprisonment and negligent infliction of emotion distress. See Complaint, Dkt. 1. Defendant moves for summary judgment or, in the alternative, partial summary judgment, on all claims for relief. See Defendant's Motion for Summary Judgment, Dkt. 33 ("Motion"). Plaintiff opposes the motion. See Plaintiff's Opposition to Defendant's Motion, Dkt. 39 ("Opp'n"). The parties have expressly consented that all proceedings in this matter may be heard and finally adjudicated by the undersigned. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. Upon consideration of the moving and responding papers, as well as arguments of counsel at the hearing on March 4, 2014, the motion is DENIED.

BACKGROUND

In June and August 2011, a pair of males committed two thefts in parking lots by selling victims empty boxes they claimed contained TVs. Both times, one suspect gave his cell phone number to the victims. Storlie, the lead investigator assigned to the thefts, entered the phone number into a database which indicated that the number was registered to "Umar Well." The database linked "Umar Well" to the father in two paternity cases identified as using the names or aliases Malik Umar, Malik Amir Umar, and Malik Abdour Rahman Umar. The children involved in the paternity cases were named Ammir Umar (Plaintiff) and Lemia Wells.

After some further investigation, Storlie put together a photo lineup using the DMV photos of Ammir Umar and five other males. Storlie was in attendance while another detective presented the photo lineup to one of the victims, Victor Tejada. Ammir Umar's photo was the second one shown. At the conclusion of the photo lineup, Tejada signed a witness statement providing, "#2's smile and teeth looks like the driver I spoke to." Tejada now testifies that he told the officers that the smile was the only resembling feature and that the person shown in photograph two was not the suspect.

After the lineup, Storlie applied for an arrest warrant with a supporting affidavit. Storlie's statement in support of probable cause said the following: "A database search of suspect's cell revealed that it was registered to a subject with the name of Umar, Ammir. I created a photo lineup. The victim positively identified the photo of Umar in the photo lineup by stating that he recognized his smile, white' teeth and mouth." The judge issued the warrant and Ammir Umar was arrested.

Umar's first claim for relief alleges that Storlie deprived him of his Fourth and Fourteenth Amendment rights by knowingly and wilfully conducting negligent investigation and suggestive and improper photographic identification that led to Umar's false arrest and the filing of charges against him. His second and third claims for relief are for false imprisonment and negligent infliction of emotional distress, respectively.

Storlie moves for summary judgment on several grounds. First, he asserts that he is not liable for any claims because he did not personally present the photo lineup, nor did he personally arrest, interrogate, or incarcerate Umar. Additionally, he did not deprive Umar of any constitutional rights because he had a valid arrest warrant and probable cause to believe that Umar committed a crime. In any case, he is entitled to qualified immunity on the § 1983 claim and is similarly protected by provisions of California Government and Penal Codes with respect to the state law claims.

Umar opposes the motion and argues that Storlie did not have probable cause to arrest Umar because the photo lineup was unduly suggestive and he provided misinformation on the affidavit. Moreover, he is not entitled to qualified immunity for his judicial deception, nor does California law provide immunity for false arrest and related claims.

LEGAL STANDARD

A motion for summary judgment should be granted if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial burden of informing the court of the basis for the motion, and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In order to meet its burden, "the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

If the moving party meets its initial burden, the burden shifts to the non-moving party to produce evidence supporting its claims or defenses. See Nissan Fire & Marine Ins. Co., Ltd., 210 F.3d at 1102. The non-moving party may not rest upon mere allegations or denials of the adverse party's evidence, but instead must produce admissible evidence that shows there is a genuine issue of material fact for trial. See id. A genuine issue of fact is one that could reasonably be resolved in favor of either party. A dispute is "material" only if it could affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248-49.

"When the nonmoving party has the burden of proof at trial, the moving party need only point out that there is an absence of evidence to support the nonmoving party's case.'" Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (quoting Celotex Corp., 477 U.S. at 325). Once the moving party meets this burden, the nonmoving party may not rest upon mere allegations or denials, ...

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